How remote is the future?

United Kingdom

During the Covid-19 pandemic regulatory proceedings have been largely curtailed and limited to those held over remote links. As regulatory hearings recommence post-lockdown this article considers the legality and likely future of remote proceedings. Might remote hearings be adapted into an effective and beneficial long-term initiative?

Legality

The rather troublesome starting point is that there is no provision in the Coronavirus Act 2020 that specifically covers professional discipline tribunals.

There are arguments both ways. On the one hand, the fact that thereissuch provision for criminal and civil proceedings arguably underlines the need for them in professional discipline. It was perfectly open to Parliament to include them and it self-evidently did not. Further, it could not be said that medical professionals were not paramount in Parliament’s mind, given that the very first provisions of the Act deal with emergency registration and provisions for nurses and medical practitioners. Others say that is too pedantic an interpretation and when one reads the Act properly it is clear what the will of Parliament was.

However, whether the Act mentions professional discipline/regulatory proceedings or not, the senior judiciary has been quick in making its views known.

On 19 March 2020, the Lord Chief Justice’s statement to Civil and Family courts was that the default position was that hearings would be conducted remotely. He stated: “we all need to recognise that we will be using technology to conduct business which, even a month ago, would have been unthinkable. Final hearings and hearings with contested evidence very shortly will inevitably be conducted using technology, otherwise there will be no hearings and access to justice will become a mirage.”

Approximately a week later, the Judiciary of England and Wales issued ‘The Civil Justice in England and Wales Protocol Regarding Remote Hearings[1]. Paragraph one states: “The current pandemic necessitates the use of remote hearings wherever possible. This Protocol applies to hearings of all kinds, including trials, ….. It should be applied flexibly.”

So, even before recent authorities, the sign-posts from the judiciary suggested it would be an uphill struggle for arguments about illegality to find favour.

The authorities seem to bolster that view.

In National Bank of Kazakhstan v Bank of New York Mellon SA/NV London Branch despite it being a case of complexity involving multiple witnesses over a protracted period of time, the court’s view was that did not mean that a remote hearing was not possible. In dealing with an application to adjourn the case as whole, Teare J said [2]: “The courts exist to resolve disputes …The default position now in all jurisdictions must be that a hearing should be conducted with one, more than one, or all participants attending remotely.”

Further, in One Blackfriars [2020] EWHC 845 (Ch) involving a £250 million claim against the former administrators of a company for their alleged mishandling of the administration, the Court ruled that a five-week trial due to begin in early June 2020, involving witnesses of fact and expert witnesses, could proceed remotely.

One Blackfriars was subsequently applied in Municipio de Mariana [2020] EWHC 928 (TCC), a case described in the proceedings as the largest class action ever brought in England and as being of unusual scale and complexity. Having reviewed the authorities, the Court set out a number of principles that govern the question of whether a particular hearing should be adjourned if the case cannot be heard face to face or whether instead there should be a remote hearing. The court stated that “regard must be had to the importance of the continued administration of justice. Justice delayed is justice denied even when the delay results from a response to the currently prevailing circumstances. “[3] It also noted however, that “there will be cases where the court cannot be satisfied that a fair resolution can be achieved by way of a remote hearing.”[4]

Many regulators have adopted or cited these authorities in favour of substantive remote proceedings, and there is no doubt that, taken together with the clear judicial steer already referred to, the arguments do appear to be going predominantly one way i.e. necessity requires these hearings to be conducted in this manner, that is the default and one has to accept that is the new legal and procedural landscape.

Nonetheless, there have also been some cautionary words put forward by the President of the Family Division in several important cases.

Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583, the first appeal relating to the welfare of children to reach the Court of Appeal on the issue of remote hearings during the COVID 19 pandemic, set a number of important principles, not least that the appropriateness of the nature of proceedings must be individually assessed by the court. The Court set out some ‘Cardinal Points’ that included: “Any decision to hold a remote hearing, and by what means, is a case management decision to be exercised by the tribunal hearing the matter.” The Court also noted that “Any guidance issued by the senior judiciary is simply that. The aim is to support the tribunal in its decision as to whether a hearing should proceed remotely or not.” It then helpfully sets out ten matters that a court should consider when deciding whether or not to proceed by way of a remote hearing.[5]

There was then the case of Re B (A Child) [2020] EWCA Civ 584 before the President of the Family Division, Lord Justice Peter Jackson and Lady Justice Nicola Davies. The Court noted that “the fundamental principles of substantive law and procedural fairness are unchanged… A remote hearing, where it is appropriate, can replicate some but not all of the characteristics of a fully attended hearing”

The decision which seems to have garnered greatest scrutiny is Re P (A Child: Remote Hearing) [2020] EWFC 32. Despite submissions from all but one of the parties to hear the case remotely, the court adjourned the matter, noting: “The more important part, as I have indicated, is for the judge to see all the parties in the case when they are in the courtroom, in particular the mother, and although it is possible over Skype to keep the postage stamp image of any particular attendee at the hearing…. it is a very poor substitute to seeing that person fully present before the court.

Risks and benefits

Much may be lost in a remote hearing. The intervention of technology between viewers and the viewed sterilizes the exchange, removing a critical dimension of human interaction. The whole experience becomes literally and figuratively two dimensional. It is easier to lie to a machine than to someone’s face. The truth does not hit you in the same way through a screen. The impact of evidence-in-chief and cross-examination can both be reduced. Nonetheless, advocates have become accustomed to dealing with vulnerable witnesses and sexual allegations via video link and some believe that the remorseless, close-up gaze of a camera is revealing.

Yet it remains difficult to pick up on subtle emotional cues at a distance. This is important not just for the assessment of witness testimony but for proper client care and the consideration of participant welfare by the tribunal. Signs of stress can be easily missed over a remote, and often muted, link. This should not be underestimated as a problem. Regulatory proceedings can and do have life-changing consequences. Too many professionals deprived of their professional identity have sunk into depression and suicide to ignore.

Cases that do not involve hearing or weighing live evidence are clearly more suitable for remote determination. Interim order hearings, directions hearings, case management hearings and pre-hearing reviews are natural contenders for continuing to be heard remotely. Simpler review and substantive hearings, such as conviction, performance or health cases where impairment is not contested can also be dealt with very effectively without requiring attendance. Even where impairment is contested, it may be possible to hear cases remotely in circumstances where the registrant does not intend to give evidence and all witnesses are professional. Similarly, remote hearings are more suited to short cases. Few of us have suitable private space at home to engage in a remote link without interruption for days on end. As lawyers’ offices re-open they will become available for full liaison between lawyers and clients, facilitating the taking of instructions without additional private remote links.

Remote hearings are easier to arrange at short notice. The parties (and witnesses or supporters, if any) do not need to arrange travel and accommodation, saving time and expense and expanding availability. Hearing urgent interim order applications remotely benefits both regulators and defence organisations (as well as individual registrants). It should allow limited resources to be deployed more effectively in the preparation and hearing of substantive cases. To take a practical example, many hearing rooms no longer required for interim cases could be used for substantive hearings instead.

Substantive misconduct hearings, however, particularly those involving contested allegations of dishonesty or sexual motivation, are frequently listed for several weeks and would historically have been attended by all parties in the absence of compelling justification. These are most likely to continue to be heard in person, at least in large part. Cases considering particularly complex or sensitive subject matter are also more suited to full attendance, as vulnerable witnesses often require additional support and registrants are likely to have a greater need to liaise with their legal representatives. Similarly, hearings involving a large number of parties, with many witnesses or more than one registrant, are likely to be difficult to manage entirely remotely.

In almost all substantive cases, assessment of the insight and engagement of the registrant is of critical importance. The circumstances of the registrant, including whether they are represented and their ability to properly and fairly defend themselves against allegations, must be taken into account. Cases involving a registrant who does not have the ability to engage with and follow proceedings remotely due to, for example, language difficulties or health reasons, will need to be accommodated.

Advantages of convenience and cost-saving have never outweighed the fair administration of justice in the past and it is important to ensure that they do not do so in the future. Nevertheless, the experience of having held some remote hearings effectively is bound to occasion a reconsideration of where the balance falls. Arguably instead of a presumption of a hearing in person, cases could be held remotely where it is possible and fair to do so. Working from a starting point that is possible for proceedings to be held remotely, parts can then be ‘hived off’ into sections where attendance would be required or advantageous in the interests of justice. Some cases may be conducted in person until all witnesses, including the registrant, have given evidence with the remainder proceeding remotely. Many cases might lend themselves to some form of hybrid solution.

Hybrid hearings

A hybrid hearing involves conducting all or part of the proceedings without all parties physically in attendance. It would encompass, for example, a situation where a registrant wishes to give evidence in person but then participates in the rest of the proceedings remotely. Similarly, it may not be necessary for all witnesses, advocates or even tribunal members to be physically present for the entirety of the proceedings. Submissions, determinations and even the questioning of witnesses, where appropriate, can all be performed or delivered via alternative remote means.

Hybrid hearings introduce a greater element of flexibility, allowing the participation mode of various parties to be blended according to the circumstances of the particular case. They offer a compromise position which sits between the rigid choices of the hearing being conducted either fully remotely or fully attended. The adaptability of a hybrid format facilitates versatile case management in these uncertain times, where social distancing restrictions may be relaxed or tightened at short notice.

Objections must be taken into account, bearing in mind potential inequality between the parties and whether any injustice is likely to be suffered, but these can be balanced in a hybrid model, allowing for the idiosyncrasy of each case. Although careful pre-hearing case management cannot be underestimated, a hybrid approach presents an adaptable solution that continues to promote fairness and proportionality in the manner in which hearings are conducted.

The way forward

With events developing apace, the remote future may be more imminent than we thought. A proper legislative underpinning for remote hearings will be required, once the circumstances cease to be exceptional and become the ‘new normal’. Provision will have to be made for public attendance (or virtual observation) to comply with the requirement for open justice.

Such legislation should not be overly prescriptive. It should be sufficiently flexible to permit the adoption of different degrees of hybrid hearings, tailored to individual case management needs. Clear underpinning guidance must be issued by regulatory bodies to promote transparency and consistency in the process of determining which elements of a case are suitable to be heard remotely and which are not.

A policy decision should be made, after consultation, on whether the starting position should be a remote hearing or an attended one. The legislation and guidance should allow appropriate discretion to manage any objections and ensure that the interests of justice are served in respect of the individual case at hand. It is also imperative that the new provisions allow for the agile adoption of new platforms and developing technological solutions as they arise. Regulators have a duty to stay ahead of the curve in this respect whilst properly maintaining acceptable standards of security and data protection.

The PSA has now recognised many of these factors in its recently issued ‘Guidance for regulators on fitness to practise hearings during the Covid-19 pandemic’[6]. It contains much sensible advice about principles and practicalities that is likely to shape the way regulatory hearings are heard.

The way ahead will not be easy. Certain methods of working are entrenched in our courts and other legislative systems to a great extent, even forming part of our country’s historical identity. But as the saying goes, ‘We first make our habits, then our habits make us’. Amongst all of the adversity the current pandemic has brought, we also have an unexpected but unique opportunity to rejuvenate our current regulatory regime.

As published in the ARDL Autumn Bulletin 2020 on 30 November 2020

Natasha Ricioppo, Senior Associate at CMS, and Andrew Colman and Marios Lambis of 2 Hare Court